Citation Nr: 18152783 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 10-01 218 DATE: November 26, 2018 ORDER 1. Entitlement to an initial disability rating in excess of 50 percent prior to February 11, 2010 for post-traumatic stress disorder (PTSD) is denied. 2. Entitlement to a disability rating of 70 percent rating, but no higher, after February 11, 2010 for PTSD is granted. 3. Entitlement to a total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to February 11, 2010, the Veteran’s PTSD resulted in occupational and social impairment with reduced liability and productivity as a result of psychiatric symptomatology to include flattened effect, difficulty in understanding complex commands, impairment of short-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 2. From February 11, 2010, the Veteran’s PTSD resulted in occupational and social impairment deficiencies in most areas as a result of psychiatric symptomatology to include suicidal ideation, near-continuous depression, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships; however, the frequency, duration, and severity of such symptomatology have not produced more severe manifestations that more nearly approximate total occupational impairment. 3. While the Veteran has two service-connected disabilities with a combined rating of at least 70 percent, there is insufficient evidence to show that the Veteran is unable to secure and follow substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent prior to February 11, 2010 for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a rating of 70 percent, but no higher, from February 11, 2010, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, DC 9411. 3. The criteria for entitlement to a TDIU have not been met. 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from February 2003 to August 2003 and from May 2005 to September 2006. The Veteran is a Gulf War Veteran with service in Iraq. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). There is a lengthy procedural history associated with the Veteran’s claim for an increased rating for his service-connected PTSD. During the pendency of the appeal to the Board, in a March 2010 rating decision, the RO granted the Veteran an increase in rating to 50 percent from 30 percent. In August 2013, the Board remanded the appeal to the RO for a new PTSD examination as symptoms of worsening were reported. The case was subsequently returned to the Board and a decision denying the claim was rendered in March 2016. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (CAVC). In March 2018, CAVC issued a Memorandum Decision that set aside the Board’s March 2016 decision and remanded the claim for readjudication consistent with its decision. CAVC ruled that the Board’s reasoning was inadequate because it did not consider evidence that the Veteran experienced suicidal ideation, which is an enumerated symptom for a 70 percent evaluation. 1. Entitlement to a rating in excess of 50 percent for PTSD The Veteran contends that the symptoms of his PTSD warrant a rating in excess of 50 percent. In his January 2010 VA Form 9, the Veteran contends that his ability to understand complex commands has been severely degraded since returning from Iraq. He asserts that his long and short-term memory has hindered his ability to function at 100 percent at both home and work; he cannot remember events, studied material, questions, names, or requests. The Veteran further stated that his quality of life has been degraded as he does not go out in public if he does not have to and he no longer enjoys outdoor activities. Disability rating are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded. Ab v. Brown, 6. Vet. App. 35, 39 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In a decision, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran’s PTSD is rated under DC 9411. Pursuant to DC 9411, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, DC 9411, General Rating Formula for Mental Disorders. Symptoms listed in VA’s general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The VA is required to perform a “holistic analysis” in which it “assesses the severity, frequency, and duration of the signs and symptoms of the Veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Bankehead v. Shulkin, 29 Vet. App. 10, 22 (2017). A. Prior to February 11, 2010 The evidence of record shows that the Veteran first sought treatment for PTSD in March 2007 when the Veteran visited the VA to develop a readjustment plan after returning from Iraq. In March 2007, the Veteran’s reported symptoms included difficulty concentrating and focusing, exaggerated startle response, difficulty being in touch with his feelings, difficulty expressing emotions towards other people, and nightmares. In May 2007, the Veteran was formally assessed for PTSD. The examiner opined that the Veteran met the formal criteria for a diagnosis of PTSD under DSM IV. During the mental status exam, the examiner found the Veteran to be casually dressed and groomed, cooperative, and alert with the ability to concentrate. The Veteran presented as depressed and anxious; his affect was appropriate to his mood. The Veteran’s reported symptoms included: repeated disturbing memories; violent dreams of killing; hearing noises; increased anxiety due to noises; crying for no reason; feeling jittery, panicky, and upset stomach when thinking about his military experience; avoidance of thinking or talking about his experience; difficulty shooting weapons; difficulty performing Army Reserve drill obligations; loss of interest in activities and interests he used to enjoy like computers; feelings of distance from others; difficulty falling asleep; harshness with children; and extreme difficulty concentrating at his job. The Veteran endorsed “not at all true” when asked whether he felt like killing himself. The Veteran was afforded a VA examination in October 2008 where his PTSD diagnosis was affirmed. During the mental status exam, the examiner described the Veteran as cooperative and friendly with appropriate grooming. The Veteran’s mood was depressed and anxious with a flattened affect. He made appropriate eye contact except when recalling traumatic events. Reported symptoms included: crying for no reason; negative reaction to fireworks; feelings of detachment; difficulty concentrating; flashbacks; anxiety when hearing helicopters or other strange noises; nightmares once a month about the military; exaggerated startle response; and inability to enjoy activities he used to enjoy such as dancing and dinner with his wife. The Veteran also reported that after returning from Iraq, he missed about 30 days at work compared to only 10 days prior to deploying. He also noted that his progress at work had slowed. Additional symptoms noted by the Veteran were: feeling depressed and irritated; drinking more frequently to numb and cope; poor sleep; forgetting conversations with wife and children; and verbal fights with wife, strangers, and neighbor. The Veteran did report a good relationship with his mother, but a poor relationship with his father. He had little contact with his siblings. The Veteran denied any suicidal ideation. Additionally, the Veteran’s wife provided a statement in February 2008 regarding behaviors and symptoms she observed. The Veteran’s wife stated that the Veteran had been distant since returning home from Iraq and he was distrustful of her and unaffectionate. She stated that the Veteran drinks excessively, which escalates his anger issues. She added that he throws things and yells and is unable to calm down. The Veteran’s wife recalled an incident in March 2007 when the Veteran cried uncontrollably and she had to call the Military One Source hotline to help the Veteran calm down. She recalled another incident during the 4th of July when the Veteran retreated to the back of the house during fireworks and was too scared to leave from the wall. She stated that she was eventually able to coax the Veteran to return to their home. Overall, the totality of the evidence reflects symptoms warranting no more than a 50 percent rating under the applicable criteria. The evidence of record shows symptoms warranting a continued rating at 50 percent due to chronic sleep impairment, anxiety, depression, mild memory loss, lack of motivation to do once enjoyable activities, and irritability. As to the Veteran’s occupational functioning, the evidence shows that the Veteran’s PTSD symptoms affected his ability to focus and concentrate at work as he was not progressing or producing at work and he was missing days. The Veteran’s social functioning appeared to be reduced as his only relationships appeared to be with his wife, mother, and children. He did not enjoy previously enjoyable activities such as computers or going out with his wife. However, the evidence of record does not show occupational and social impairment in most areas warranting a 70 percent evaluation. The evidence shows that the Veteran was able to maintain employment despite difficulties with concentration and focus. As to his social functioning, the evidence shows that the Veteran maintained a good relationship with his wife, children, and mother. There is no medical or lay evidence showing symptoms such as suicidal ideation, obsessional rituals, illogical speech, or neglect in personal hygiene. Accordingly, as the preponderance of the evidence is against the Veteran’s claim, a disability rating in excess of 50 percent for the Veteran’s PTSD prior to February 2010 is denied. Gilbert, 1Vet. App. at 58; 38 U.S.C. § 5107. B. From February 11, 2010 to present Upon VA examination on February 11, 2010, the Veteran’s diagnosis for PTSD was again affirmed. The examiner opined that the Veteran’s symptoms resulted in occupational and social impairment with reduced reliability and productivity. During the mental status exam, the Veteran’s speech was normal and his attitude was cooperative. However, his affect was constricted and his mood was anxious and depressed. The Veteran’s reported symptoms included: depression; lack of motivation to leave the house or engage in once pleasurable activities like hunting; daily disturbing thoughts and memories about Iraq; nightmares every night; flashbacks one to two times per week; startled by loud noises or flashes of light; physical reactions such as feeling sick to stomach; shaking hands; heart pounding; feeling distant from others; feeling emotionally numb; irritability and anger; and occasional panic attacks. The Veteran also reported that he had been separated from his wife for about two months at the time of the exam. He also reported increasing problems with his employment due concentration issues and memory loss and feared losing his job due to his performance. Most significantly, the Veteran reported that he thinks about suicide and wonders if it would be the easier thing to do, but he had no plans to act on his thoughts. In October 2010, the Veteran visited his primary care provider. He reported symptoms of poor concentration, occasional flashbacks, and sleep impairment. During his visit, the Veteran answered “yes” to feeling hopeless about the present or future and he answered “yes” to the thought of taking his own life. The Veteran noted that he had these thoughts months ago. The Veteran attended a mental health diagnostic interview in December 2010. The mental status exam noted that the Veteran’s concentration was mildly impaired. The Veteran reported continued issues at work due to memory loss and concentration problems. The Veteran reported a somewhat good relationship with his wife and children, but that he was not as close with his wife since Iraq and did not feel comfortable talking with her. He also reported one male friend who he talks to about “guy stuff.” The Veteran reported a strained relationship with some of his children who do not reside with him. The Veteran’s additional reported symptoms included: worsening concentration; diminished appetite; daily fatigue; diminished interest and motivation; persistent feelings of worthlessness; anxiety; panic attacks; and hearing whisperings and mumblings about once a month. The Veteran attended another mental health diagnostic interview in April 2012. During the mental health status exam, the examiner found the Veteran’s affect to be restricted and noted mild memory impairment. The Veteran reported increasing difficulty concentrating and retaining new information and worry about how his difficulties would impact his job status. He also continued to report an increasing strain in his familial relationships with feelings of detachment. Additional reported symptoms included intrusive recollections when triggered by reminders, nightly nightmares, avoidance of thoughts related to combat exposure, and exaggerated startle response. Suicidal ideations were not noted or reported during this visit. In May 2012, a private counselor provided a letter documenting treatment that the Veteran began receiving in March 2012. The letter noted that the Veteran presented with symptoms of depression, anxiety, memory loss, recurrent nightmares, sleep impairment, problems concentrating, and inability to effectively communicate with coworkers. Notably, the letter stated that the Veteran had presented suicidal ideation. The counselor opined that the Veteran’s symptoms were increasingly impairing his ability to hold gainful employment and his ability to enjoy all activities of daily life. Also in May 2012, the Veteran attended a mental psychotherapy/medication management appointment with the VA. The mental status exam noted a mild right-hand tremor that disappeared with distraction, restrictive and reactive affect with mood congruent to affect. The Veteran continued to report increasing pressure with his employer due to low performance. The Veteran stated that anxiety and difficulty concentrating as his most impairing symptoms. Most importantly, the Veteran endorsed transient passive suicidal ideation without an intent or plan. The Veteran reported having thoughts of suicide several times since his last visit. The Veteran underwent another VA examination in October 2013. The examiner affirmed the Veteran’s PTSD diagnosis and opined that the Veteran’s symptoms resulted in occupational and social impairment with occasional decrease in work efficiency. The mental status exam noted that the Veteran was well-groomed, cooperative, and pleasant; however, the Veteran failed to maintain eye contact, his affect was restricted, and his mood was depressed. The Veteran reported that his problems with concentration and memory loss were still prevalent which resulted in the Veteran losing his job in 2012. The Veteran stated that he was able to find a new job in March 2013 for considerably less pay. The Veteran also reported that he reconciled with his wife, but the relationship was both good and bad. He said he spends his leisure time playing games on the computer, listening to music, and attending his son’s football games. Symptoms noted by the examiner were anxiety, chronic sleep impairment, irritability, nightmares, and mild memory loss. The Veteran reported that he thought about shooting himself after losing his job, but his wife stopped him. His suicidal thoughts come and go with the most recent thought being a few weeks prior to the examination. The Board notes that CAVC has held that suicidal ideation generally rises to the level contemplated in a 70 percent rating. See Bankhead, 29 Vet. App. at 20. CAVC specified that VA must not require “more than thought or thoughts to establish the symptom of suicidal ideation,” and may not require that the Veteran have been “hospitalized or treated on an inpatient basis” to establish suicidal ideation because that imposes a higher standard than the criteria in the DC for mental disorders. Id. at 20-21. Moreover, CAVC cautioned VA not to conflate the risk of “suicidal ideation, which VA generally considers indicative of a 70 [percent] evaluation, and his risk of self-harm, the persistent danger of which VA generally considers indicative of a 100 [percent] evaluation.” Id. at 21. As applied, the suicidal ideation documented from February 2010 through October 2013 is more than sufficient to establish the suicidal ideation symptom consistent with a 70 percent rating in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Along with the Veteran’s constant suicidal ideation, the totality of the evidence reflects symptoms warranting a 70 percent rating under the applicable criteria. The evidence of record shows symptoms warranting an increased rating to 70 percent due to continuous depression, continuous disturbances in motivation and mood, chronic sleep impairment, limited relationships and family and social supports, and frequent concentration problems and memory loss. As to the Veteran’s occupational functioning, the evidence shows that the Veteran’s difficulties concentrating and memory loss have resulted in the Veteran losing his job. He was able to secure another job, but for less pay. As to his social functioning, the Veteran has a strained relationship with his family and enjoys only a few activities. The Veteran’s constant depression, fatigue, and irritability appear to have impaired his ability to enjoy daily activities or time with his family. However, the Board finds that the severity, duration and frequency of the Veteran’s symptoms have not produced a total occupational and social impairment warranting a 100 percent rating. The evidence of record shows that the Veteran does not have total occupational impairment since is able to maintain gainful employment despite his difficulties with concentration and focus. The Veteran does not have total social impairment as he is able to maintain relationships, although strained, with his wife, some of his children, and one friend. Also, the evidence shows that the Veteran enjoys activities such as listening to music and attending his son’s football games. The mental status exams indicate that the Veteran is able to perform daily activities, such as appropriately dressing and grooming himself. There is no medical or lay evidence of persistent delusions or hallucinations, grossly inappropriate behaviors, or total memory loss that inhibit the Veteran’s ability to independently function. In sum, the Veteran’s PTSD symptoms, including symptoms of suicidal ideation, have been frequent and severe enough to warrant a rating in excess of 50 percent from February 11, 2010. The Board concludes that the Veteran’s PTSD is manifested by symptomatology that nearly approximates the criteria for a 70 percent evaluation under DC 9411. 2. Entitlement to a TDIU A claim for a TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, App. 447 (2009). Here, there is evidence suggesting that the Veteran’s PTSD symptomatology interferes with his ability to maintain employment. As the record now raises a question of whether the Veteran is unemployable due to his service-connected disabilities, a claim for a TDIU is properly before the Board. A total disability rating may be assigned when the schedular rating is less than 100 percent where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran is currently service-connected for PTSD at a 70 percent rating and residuals of a right ankle fracture evaluated at 10 percent. The Veteran’s combined rating for compensation purposes is 70 percent and one of his disabilities is rated at the least at 40 percent. Therefore, the Veteran meets the schedular rating criteria for a TDIU. 38 U.S.C. § 4.16 (a). The remaining inquiry is whether he is unable to secure or follow a substantially gainful occupation due solely to service-connected disabilities. The evidence of record shows that the Veteran has been gainfully employed during the pendency of this appeal. The Veteran was briefly out of work in May 2012 when he was let go by his employer. However, the Veteran was able to secure work with another employer a short time later albeit at a substantially lower rate of pay than his previous job. The evidence shows that the Veteran was able to maintain a career in telecommunications before entering service and after separating from service. Further, the October 2013 VA examiner determined that the Veteran was not rendered unable to secure and maintain substantially gainful employment due to his PTSD. Therefore, a TDIU is not warranted by the record as the evidence fails to show that the Veteran is unemployable. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert, 1 Vet. App. at 54; 38 U.S.C. § 5107. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel